OPPOSITION No B 3 083 970

Bella Bulgaria AD, 101, "Tsarigradsko shose" Blvd., floor 8, 1113 Sofia, Bulgaria (opponent), represented by Kostadin Manev, 73, Patriarh Evtimii Blvd., fl.1, 1463 Sofia, Bulgaria (professional representative)

a g a i n s t

Global Synergy Buying Group Trade – Distributions – Agencies societe anonyme with distinctive title (trading as) "G.S.B.G. S.A.", DA 13 – Block 31 – Phase B Industrial Area of Sindos, Delta Municipality, 57022 Thessaloniki, Greece (applicant), represented by Malamis & Associates, Palaia Tatoiou 8, Kifisia, 145 64 Athens, Greece (professional representative).

On 09/07/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 083 970 is upheld for all the contested goods.

2. European Union trade mark application No 18 020 502 is rejected in its entirety.

3. The applicant bears the costs, fixed at EUR 620.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 18 020 502 for the word mark ‘BELLA PELLA’. The opposition is based on Bulgarian trade mark registration No 100 042 for the word mark ‘BELLA’. The opponent invoked Article 8(1)(b) EUTMR.

LIKELIHOOD OF CONFUSION — ARTICLE 8(1)(b) EUTMR

A likelihood of confusion exists if there is a risk that the public might believe that the goods or services in question, under the assumption that they bear the marks in question, come from the same undertaking or, as the case may be, from economically linked undertakings. Whether a likelihood of confusion exists depends on the appreciation in a global assessment of several factors, which are interdependent. These factors include the similarity of the signs, the similarity of the goods and services, the distinctiveness of the earlier mark, the distinctive and dominant elements of the conflicting signs, and the relevant public.

a) The goods

The goods on which the opposition is based are the following:

Class 29: Meat; meat, tinned; meat, preserved; salted meats; pork; bacon; blood sausage; ham; poultry, not live; game [dead]; fish [not live]; tuna, not live; fish, tinned; fish, preserved; fish fillets; anchovy; salted fish; sardines, not live; salmon, not live; herrings, not live; meat extracts; vegetables, preserved; vegetables, tinned; fruit, preserved; fruits, tinned; fruit preserved in alcohol; frozen fruits; vegetables, dried; vegetables, cooked; jellies for food; fruit jellies; jams; compotes; eggs; edible fats; butter; sunflower oil for food; coconut oil for food; rape oil for food; palm oil for food; sesame oil for food; corn oil for food; milk; yoghurt; cheese; milk products.

Class 30: Coffee; tea; cocoa; аrtificial coffee; rice; macaroni; noodles; vermicelli [noodles]; noodle-based prepared meals; tapioca; sago; flour; flour for food; cereal-based snack food; cereal bars; corn flakes; cereal preparations; high-protein cereal bars; chips [cereal products]; bread; cakes; confectionery; chocolate; ice cream; ice cream powders for food purposes; sorbets; ice for refreshment; ice; sugar, honey, treacle for food; yeast, baking-powder; cooking salt; mustard; vinegar; sauces [condiments]; spices; condiments.

The contested goods are the following:

Class 29: Meat, fish, poultry and game; meat extracts; preserved, frozen, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs; milk, cheese, butter, yoghurt and other milk products; oils and fats for food.

Class 30: Coffee, tea, cocoa and artificial coffee; rice, pasta and noodles; tapioca and sago; flour and preparations made from cereals; bread, pastries and confectionery; chocolate; ice cream, sorbets and other edible ices; sugar, honey, treacle; yeast, baking-powder; salt, seasonings, spices, preserved herbs; vinegar, sauces and other condiments; ice [frozen water].

Contested goods in Class 29

The contested meat, fish, poultry and game; meat extracts; preserved, frozen, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs; milk, cheese, butter, yoghurt and other milk products; oils and fats for food are identical to the opponent’s meat; fish [not live]; poultry, not live; game [dead]; meat extracts; vegetables, preserved; vegetables, dried; vegetables, cooked; fruit, preserved; frozen fruits; jellies for food; jams; compotes; eggs; milk; cheese; butter; yoghurt; milk products; edible fats, either because they are identically contained in both lists (including synonyms) or because the opponent’s goods include, are included in, or overlap with, the contested goods.

Contested goods in Class 30

The contested coffee, tea, cocoa and artificial coffee; rice, pasta and noodles; tapioca and sago; flour and preparations made from cereals; bread, pastries and confectionery; chocolate; ice cream, sorbets and other edible ices; sugar, honey, treacle; yeast, baking-powder; salt, seasonings, spices, preserved herbs; vinegar, sauces and other condiments; ice [frozen water] are identical to the opponent’s coffee; tea; cocoa; аrtificial coffee; rice; macaroni; noodles; tapioca; sago; flour; cereal preparations; bread; cakes; confectionery; chocolate; ice cream; sorbets; sugar, honey, treacle for food; yeast, baking-powder; cooking salt; spices; vinegar; sauces [condiments]; condiments; ice, either because they are identically contained in both lists (including synonyms) or because the opponent’s goods include, are included in, or overlap with, the contested goods.

b) Relevant public — degree of attention

The average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s degree of attention is likely to vary according to the category of goods or services in question.

In the present case, the goods found to be identical are directed at the public at large. The degree of attention is average.

c) The signs

BELLA	BELLA PELLA
Earlier trade mark	Contested sign

The relevant territory is Bulgaria.

The global appreciation of the visual, aural or conceptual similarity of the marks in question must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 23).

The word ‘BELLA’, being the sole verbal element of the earlier mark and the first verbal element of the contested sign, will be understood by a part of the relevant public as a female first name of foreign origin. Even if there might be some consumers that are aware of the meaning of the word in Italian, namely beautiful, this is not considered to be the majority of the public at issue. For another part of the relevant public this will be a meaningless invented word. In any of these cases, the distinctiveness of this element is normal, since it has no meaning in relation to the goods at issue. The Opposition Division does not concur in this respect with the applicant’s argument that the meaning ‘beautiful’ will have any relation to the goods at issue, since this is not a characteristic that any of the goods, being foodstuffs, may possess.

The verbal element ‘PELLA’ of the contested sign is meaningless for the relevant public and is, therefore, distinctive.

Consumers generally tend to focus on the beginning of a sign when they encounter a trade mark. This is because the public reads from left to right, which makes the part placed at the left of the sign (the initial part) the one that first catches the attention of the reader. Therefore, the public will rather focus on the first verbal element of the contested sign, namely ‘BELLA’.

Visually and aurally, the signs coincide in ‘BELLA’ which is the sole element of the earlier mark and the first verbal element in the contested sign. However, they differ in ‘PELLA’, which is the second element of the latter. It should be, however, noted that the first letter of the word ‘PELLA’ looks very similar to the letter ‘B’ and is pronounced very similarly, as the letter ‘B’ is a voiced bilabial stop and the letter ‘P’ a voiceless bilabial stop. Furthermore, the last four letters of the second verbal element in the contested sign, namely ‘*ELLA’, coincide with the last four characters in the earlier mark ‘BELLA’.

Therefore, the signs are visually and aurally similar to a high degree.

Conceptually, as the verbal element ‘BELLA’, contained in both signs, will be perceived by part of the public as a female first name of foreign origin or as meaning beautiful, the signs are conceptually highly similar for that part of the public. For the remaining part of the relevant public, a conceptual comparison is not possible and the conceptual aspect does not influence the assessment of the similarity of the signs.

As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.

d) Distinctiveness of the earlier mark

The distinctiveness of the earlier mark is one of the factors to be taken into account in the global assessment of likelihood of confusion.

The opponent did not explicitly claim that its mark is particularly distinctive by virtue of intensive use or reputation.

Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. In the present case, the earlier trade mark as a whole has no meaning for any of the goods in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal.

e) Global assessment, other arguments and conclusion

The appreciation of the likelihood of confusion depends on numerous elements and, in particular, on the recognition of the trade mark on the market, on the association that the relevant public might make between the two marks and on the degree of similarity between the signs and the goods (recital 11 of the EUTMR). It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18; 11/11/1997, C-251/95, Sàbel, EU:C:1997:528, § 22).

Evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Therefore, a lesser degree of similarity between goods and services may be offset by a greater degree of similarity between the marks and vice versa (29/09/1998, C 39/97, Canon, EU:C:1998:442, § 17).

In the present case, the goods concerned are identical and target the general public whose degree of attention is average. The earlier mark has a normal degree of distinctiveness. The signs are visually and aurally similar to a high degree. The conceptual comparison either remains neutral or the signs are highly similar (as explained above).

The contested sign reproduces in its entirety the earlier mark as its first verbal element. The signs in conflict differ in the second verbal element of the contested sign, that is, ‘PELLA’. As explained above, the latter is quite similar to the word ‘BELLA’. Therefore, the Opposition Division is of the opinion that these slight differences cannot outweigh the similarities.

In its observations, the applicant argues that the earlier trade mark has a low distinctive character given that many trade marks include the element ‘BELLA’. In support of its argument the applicant refers to several trade mark registrations in Bulgaria.

The Opposition Division notes that the existence of several trade mark registrations is not per se particularly conclusive, as it does not necessarily reflect the situation in the market. In other words, on the basis of register data only, it cannot be assumed that all such trade marks have been effectively used. It follows that the evidence filed does not demonstrate that consumers have been exposed to widespread use of, and have become accustomed to, trade marks that include ‘BELLA’. Under these circumstances, the applicant’s claim must be set aside.

The applicant refers to previous decisions of the Office to support its arguments. However, the Office is not bound by its previous decisions, as each case has to be dealt with separately and with regard to its particularities.

This practice has been fully supported by the General Court, which stated that, according to settled case-law, the legality of decisions is to be assessed purely with reference to the EUTMR, and not to the Office’s practice in earlier decisions (30/06/2004, T‑281/02, Mehr für Ihr Geld, EU:T:2004:198).

Even though previous decisions of the Office are not binding, their reasoning and outcome should still be duly considered when deciding upon a particular case.

In the present case, the previous cases referred to by the applicant are not relevant to the present proceedings. They concern different factual circumstances, such as different trade marks and coinciding components (with different levels of distinctiveness) and different goods and services.

Considering all the above, there is a likelihood of confusion on the part of the public.

Therefore, the opposition is well founded on the basis of the opponent’s Bulgarian trade mark registration No 100 042 for the word mark ‘BELLA’. It follows that the contested trade mark must be rejected for all the contested goods.

COSTS

According to Article 109(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party.

Since the applicant is the losing party, it must bear the opposition fee as well as the costs incurred by the opponent in the course of these proceedings.

According to Article 109(1) and (7) EUTMR and Article 18(1)(c)(i) EUTMIR, the costs to be paid to the opponent are the opposition fee and the costs of representation, which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Teodora TSENOVA-PETROVA

Michal KRUK

Chantal VAN RIEL

According to Article 67 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 68 EUTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. It must be filed in the language of the proceedings in which the decision subject to appeal was taken. Furthermore, a written statement of the grounds for appeal must be filed within four months of the same date. The notice of appeal will be deemed to have been filed only when the appeal fee of EUR 720 has been paid.